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The case that could wipe out 100 years of campaign finance laws

New Deal 2.0 interviews Michael Waldman about the implications of Citizens United v. FEC.

Published: October 7, 2009

ND20 Interview with Brennan Center for Justice’s Michael Waldman

by Lynn Parramore, originally posted at New Deal 2.0

ND20: Why is the Supreme Court debating campaign finance rules right now?

MW: It started with a ‘film’ — an infomercial, actually — about Hillary Clinton produced by a right-wing group called Citizens United. They wanted to air commercials for it on a cable video-on-demand service just before the presidential primaries. The Federal Election Commission (FEC) tried to regulate it as a campaign ad. The case eventually reached the Supreme Court.

In March, 2009, the Court heard oral arguments, and a decision was expected on the last day of the term. Instead, out of the blue, the Justices said they wanted a rushed re-argument on September 9th. The timing was suspicious — no one knew when Sotomayor would be confirmed. And the Justices said they wanted arguments not really on the case before them, but something much broader: whether to overturn two cases, one from 2003 and one from 1990, that allowed limits on corporate campaign spending.

ND20: How does this case fit into the history of campaign finance in America?

MW: In 1904, Teddy Roosevelt ran for president and was faced with a scandal because he had taken money from insurance companies. This led to the creation of the Tillman Act of 1907, the first legislation in America prohibiting monetary contribution to national political campaigns by corporations.

Since 1947, under federal law, a corporation can’t cut a check to influence elections. This has been upheld time and again.

ND20: Has something changed in recent years?

MW: The whole field of campaign finance has changed substantially. Starting in the mid-70s, in response to Watergate, there was a system of campaign finance that did a lot of good – for example, there were limits on the size of contributions. That system began to break down with the introduction of soft money in the 90s. People found ways to get around the rules. Public financing of campaigns broke down. When Obama didn’t take public financing, there wasn’t much protest because the system was broken – mainly, it needed more money.

Now, something is going to replace the system. A race is on to determine what kind of campaign finance we’ll have.

ND20: What are the opposing forces?

On the one hand, we had the thrill of small donors during Obama’s campaign – it was like a revolution and wonderful to see citizens brought in. This small donor revolution was made possible, in part, by the much-derided McCain-Feingold law. When parties and candidates could no longer raise huge soft money sums, they were incentivized to seek out smaller donors. It was the law of “intended consequences.”

On the other hand, there is the possibility of a flood of corporate money. The Supreme Court has upheld campaign finance rules for a long time. In 2003, they upheld them, 5–4. Now 5–4 has become 4–5. Conservatives see a window. They can use conservative legal activism to strike down existing laws, and they’re backed by the National Right to Life Committee, the Chamber of Commerce, and the RNC. Citizens United v Hillary is just one scary part of a major push to overturn 100 years of campaign finance rules.

ND20: How critical is this issue?

MW: As far as the current Supreme Court case goes, the idea of overturning 100 years of laws is the most egregious ideological overreaching in my memory. A massive, radical, deregulation effort is underway at a moment when the cost of unbridled private money cannot be understated.

ND20: Why should people care?

MW: I think people do care, but can they realize that this is something new and different? A 100-years change sounds scary, and it is scary. There has been lots of tumult about this case – lots of op eds and columns written. If you look at what justices say about judicial restraint, then there should be no chance of overturning 100 years of law. We’re hoping the court will act as they say they believe.